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RESIDENCY PERMITS

EU Commission: ‘A stamp in a British passport does not put residency rights into question’

After hundreds of British residents of EU countries had passports stamped when returning from the UK in the New Year the EU Commission has responded to The Local's request for information and advice on their behalf. Here's the response in full.

EU Commission: 'A stamp in a British passport does not put residency rights into question'
Photo: AFP/UK Passport Office
In recent days it has emerged that scores of British nationals living in EU countries have wrongly had their passports stamped with a date of entry when returning home. One couple was told to contact a lawyer by consular officials in Germany.

British nationals coming to the EU have previously not needed to have their passports stamped, but Brexit and the end of freedom of movement has changed things somewhat.

While visitors are now subject to the Schengen area's 90-day rule, meaning they can spend a maximum of 90 days out of every 180 in the Schengen area, those Britons legally resident in the EU are not, and therefore should not have their passports stamped.

But since January 1st scores of UK residents in the EU have seen immigration officials stamp their passports with an entry date when returning from the EU.

Many British nationals have contacted The Local, while citizens' rights groups have raised concerns that passport stamps may cause problems the next time British citizens leave the Schengen area if they are over the 90-day limit.

The Local asked the EU Commission to explain why passports were being stamped and what advice it had for British nationals.

 

Passports should not be stamped

Firstly the Commission confirmed that the passports of British residents whose rights are protected by the Brexit Withdrawal Agreement should not be stamped. EU officials have tried to get that message across to border police in all member states, they added. 

“We regret the difficulties some UK travellers encountered. We have worked very closely with member states on the implementation of the (Brexit) Withdrawal Agreement to avoid such difficulties. Overall, the changes linked to the end of the transition period and end of application of EU law on free movement of EU citizens to United Kingdom nationals were implemented smoothly.

“Withdrawal Agreement beneficiaries have a right to enter their host member state and their passports should not be stamped when they cross an external Schengen border.

“Withdrawal Agreement beneficiaries are moreover exempted from the Council Recommendation on the temporary restriction on non-essential travel into the EU linked to the coronavirus pandemic. As non-EU nationals legally residing in the EU, they must not be denied boarding for travels into the EU under the Council recommendation.”

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What if you have no post-Brexit residency permit? 

The problem for many British travellers resident in the EU is that they are not yet in possession of a new post-Brexit residency permit given that many governments have only recently opened the application processes. 

That has left them relying on trying to convince border guards themselves that there was no need to stamp passports.

The EU commission said it has created guidance for all border guards, but it seems that guidance is not being read.

The Commission said: “We have discussed these specific issues in three expert group meetings (June, September and 1 December) and prepared guidance in all languages.

“The final version has been put at the disposal of the member states on 4th December 2020 (in English) and on 23rd December in all other languages (Annex 42 of the Practical Handbook for Border Guards).

The guidance sets out how to identify beneficiaries of the Withdrawal Agreement before these beneficiaries are in possession of a residence document issued in accordance with the Withdrawal Agreement for the purpose of not stamping their passports.”

“We have also prepared a document containing all specimen which will evidence that a person is a beneficiary of the Withdrawal Agreement before being in possession of the document issued in accordance with the Withdrawal Agreement (Annex 43 of the Practical Handbook for Border Guards) based on the input received by Member States. This document has been transmitted to the Member States on 15th December (and updated on 21st December).”

 

Entitled to compensation

The EU Commission said any British traveller who was denied entry to a plane after failing to prove legal residency is entitled to compensation.

“We have also transmitted the information on future rules and provided the specimen to the International Air Transport Association (IATA)’s TIMATIC which provides carriers with information about entry procedures and visa requirements in all countries of the world. The onus is on airlines to apply the new rules correctly.

“UK nationals who have been denied boarding by an EU air carrier can seek compensation as well as reimbursement of their ticket or re-routing under Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, unless where the air carrier can prove in the specific case at hand that the denied boarding was based on reasonable grounds related to e.g. inadequate travel documentation.

“Please note that Regulation (EC) No 261/2004 would not apply to those denied boarding by UK carriers from January 1st, 2021. In this case, possible rights in case of denied boarding should be assessed on the basis of UK legislation.”

A stamp is no threat residency 

The final message from the Commission is that an erroneous passport stamp will not put residency rights into question.

It also said British nationals can ask border guards to cross out stamps, as some have done, according to reports we have received.

However, once again, it appears British travellers might have to explain themselves if those immigration officials have not read the “Practical Handbook for Border Guards”.

“If the beneficiaries of the Withdrawal Agreement can provide evidence that they have been incorrectly stamped, the stamp can be annulled by the border guard as explained in the Practical Handbook for Border Guards (see p. 68/69 of the Handbook).

“However, depending on national practices, some Member States may still stamp passports of beneficiaries of the Withdrawal Agreement, even if they hold notified documents: Member States may stamp residence permit they issued themselves and if this possibility is provided by national law.

“In any case, a wrong stamp in a passport can never put into question the right to reside in the host Member State.”

 

Member comments

  1. Of course going the other way, you are on your own. Priti Patel will doubtless deport you if you overstay an erroneous stamp even if you have UK residency established. Wouldn’t be the first time.

  2. While not claiming residency rights, well not yet, we have had a home in Provence for nearly 50 years, have paid taxe d’abitation, and VAT, have a bank account and have,’till now spent 4 or 5 months in France. We have been deprived of our citizenship of Europe and access to our home and assume we must now apply for a visa.

  3. It seems that some people have had the best of both worlds and want their cake and eat it. If you have a home in an EU country besides a home in the UK, you can obviously afford to sort out your residency from the UK before you go back to your EU-country home. Also, you must have known something like the situation you are in would happen, once the referendum vote was announced – that’s four and half years ago. I sorted mine out long ago, even though I was in favour of the UK leaving the EU. I dislike the Schengen Agreement and see it as a way for a (Dis)United States of Europe, which will dilute each countries identity into dust.

    By the way, the two correspondents’ names – Robert Altinger and Raymond Attfield – sound like a psuedonym of each other. A coincidence?

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IMMIGRATION

EXPLAINED: What are the main obstacles to finding a job when moving to an EU country?

Moving to another country is never easy, as it requires going through cultural changes and administrative formalities. It can be even more complicated when looking for a job.

EXPLAINED: What are the main obstacles to finding a job when moving to an EU country?

According to new data released by the EU statistical office, Eurostat, the knowledge of the national language and the recognition of professional qualifications are the two most common obstacles experienced by foreign-born people in finding a ‘suitable’ job in countries of the European Union.

Overall, about a quarter of people born outside the EU who had experience in working or looking for work in the bloc reported some difficulties getting a ‘suitable’ job for level of education (without considering the field of expertise or previous experience).

The Eurostat analysis shows that the situation is better for EU citizens moving within the bloc. But there are major differences depending on countries and gender.

Life can be more difficult for women

In 2021, 13.2 percent of men and 20.3 percent of women born in another European Union country reported obstacles in getting a suitable job in the EU place of residence.

These proportions however increase to 20.9 percent for men and 27.3 percent for women born in a non-EU country with a high level of development (based on the United Nations’ Human Development Index) and 31.1 percent for men and 35.7 percent for women from non-EU countries with a low or medium level of development.

Finland (42.9 percent), Sweden (41.7 percent), Luxembourg (34.6 percent) and France (32.1 percent) are the countries with the highest shares of people born outside the EU reporting problems. Norway, which is not part of the bloc, has an even higher percentage, 45.2, and Switzerland 34.3 percent.

In contrast, Cyprus (11.2 percent), Malta (10.9 percent), Slovenia (10.2 percent), Latvia (10 percent) and Lithuania (6.7 percent) have the lowest proportion of people born outside the EU reporting difficulties.

Lack of language skills

The lack of skills in the national language is most commonly cited as a hurdle, and it is even more problematic for women.

This issue was reported by 4.2 percent of men born in another EU country, 5.3 percent of those born in a developed country outside the EU and 9.7 percent of those from a non-EU country with a middle or low level of development. The corresponding shares for women, however, were 5.6, 6.7 and 10.5 percent respectively.

The countries where language skills were more likely to be reported by non-EU citizens as an obstacle in getting a relevant job were Finland (22.8 percent), Luxembourg (14.7 percent) and Sweden (13.1 percent).

As regards other countries covered by The Local, the percentage of non-EU citizens citing the language as a problem was 12.4 percent in Austria, 10.2 percent in Denmark, 7.8 percent in France, 5.1 percent in Italy, 2.7 percent in Spain, 11.1 percent on Norway and 10.1 percent in Switzerland. Data is not available for Germany.

Portugal (77.4 percent), Croatia (68.8 percent), Hungary (58.8 percent) and Spain (58.4 percent) have the highest share of people from outside the EU already speaking the language as a mother tongue before arriving, while more than 70 percent of non-EU citizens residing in Denmark, Finland, Luxembourg and Norway said they had participated in language courses after arrival.

Lisbon Portugal

Portugal has the highest share of people from outside the EU already speaking the language as a mother tongue before arriving. (Photo by Aayush Gupta on Unsplash)

Recognition of qualifications

Another hurdle on the way to a relevant job in EU countries is the lack of recognition of a formal qualification obtained abroad. This issue was reported by 2 percent of men and 3.8 percent of women born in another EU country. It was also mentioned by 3.3 percent of men and 5.9 percent of women born in a developed country outside the EU, and 4.8 percent of men and 4.6 percent of women born in a less developed non-EU country.

Eurostat says this reflects an “unofficial distrust” among employers of qualification obtained abroad and the “low official validation of foreign education”.

The lack of availability of a suitable job was another factor mentioned in the survey. In Croatia, Portugal and Hungary, this was the main obstacle to getting an adequate position.

This issue concerned 3.3 percent of men and 4.5 percent of women born in another EU country, 4.2 percent of men and 5 percent of women born in a developed non-EU country It also worried 3.9 percent of men and 5.1 percent of women born in a less developed non-EU country.

Restricted right to work due to citizenship or residence permits, as well as plain discrimination on the grounds of origin were also cited as problems.

Discrimination was mostly reported by people born in a less developed non-EU country (3.1 percent for men and 3.3 percent for women) compared to people born in highly developed non-EU countries (1.9 percent for men and 2.2 percent for women).

Citizenship and residence permits issues are unusual for people from within the EU. For people from outside the EU, this is the only area where women seem to have fewer problems than men: 1.6 percent of women from developed non-EU countries reported this issue, against 2.1 percent of men, with the share increasing to 2.8 and 3.3 percent respectively for women and men from less developed non-EU states.

The article is published in cooperation with Europe Street News, a news outlet about citizens’ rights in the EU and the UK.

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